Ex Parte Kearby
Decision Date | 28 March 1896 |
Citation | 34 S.W. 962 |
Parties | Ex parte KEARBY. |
Court | Texas Court of Criminal Appeals |
J. C. Muse and Stillwell H. Russell, for relator.Mann Trice, for the State.
The relator in this case applied for a writ of habeas corpus to this court, which was granted.Evidence was adduced on the trial of the case, from which it appears that on the morning of the 29th of February, 1896(which was Saturday), in the criminal district court of Dallas county, J. C. Kearby, the relator, and W. E. Hawkins, were imprisoned in the county jail of said county on the verbal order of the district judge.In the afternoon of the same day the said parties applied to Judge Henderson of the court of criminal appeals, for a writ of habeas corpus, which was granted, said writ being made returnable before the full court on Monday, the 2d day of March.Said parties, by the order of the judge granting the writ, were released in the interim on bonds, which they gave.On their release (which was between 2 and 3 o'clock in the afternoon)they came into the said criminal district court, to re-engage in the trial of a criminal cause then pending and being tried before said court, said Hawkins representing the state and J. C. Kearby representing the defendant.On their return into court it appears that the district judge stated to them that they could not proceed with the trial of the case(which was then before the court) until they had purged themselves of contempt.Hawkins arose, and asked the court what he should do to purge himself of contempt.The court replied, "You are a lawyer, and ought to know."Kearby, the relator, then arose from his place at the table, and said, "Your Honor, I have not committed any contempt, and I decline to purge for what I am not guilty of."The court then ordered the sheriff to take him to jail.This is, in substance, the relation of the matter by the witnesses introduced for the relator, to wit, Kearby, Muse, W. E. Hawkins, S. B. Hawkins, Green Williams, and Henry Williams.Lewis and Cabell, who were introduced by the state, did not materially differ from the testimony of the relator's witnesses as to what occurred preceding the order by the court to put the relator in jail.Webb, Haynes, and Hoskins, three witnesses introduced by the state, indicate by their testimony that something more occurred before the relator was ordered to jail.They state, as well as Cabell, that when Kearby came into the court room he picked up a pitcher in front of him, and set it down to one side, in such a manner as to be heard in the court room.They also testify that during the colloquy that ensued between the judge and the relator, before he was taken from the court room, he became quite boisterous and excited; and they testify that he used a profane epithet, applying it to the judge in such manner as that it could be heard by those immediately around him, and one witness testifies that it was heard by the jury.We gather, however, from the testimony in the case, that the order of the judge to imprison the relator was made, as testified to by nearly all of the witnesses, almost immediately on the parties making their appearance in the court room, so that what afterwards occurred is not so material to a decision of this case; and we are supported in this view by the order of the judge himself, which is as follows: Said order indicates that the judge required of the relator to purge himself of the contempt committed in the morning, before he would be permitted again to appear in the case then on trial.We would observe, in this connection, that the order in question was not made at said time.In fact, no order, except the direction to the sheriff to take him to jail, was made.The nature of the contempt was not announced, nor was the clerk instructed to enter any order, although J. C. Muse insisted before the court that he should make some order defining the time of imprisonment, whether it was to be for life or a term of years.But the judge refused to entertain the request.Mr. H. H. Williams, the clerk, says that some 15 minutes thereafter the judge instructed him to inform the sheriff that the order of imprisonment was until 9 o'clock that night.He further states that at the suggestion of the judge, on Monday or Tuesday thereafter, he wrote up an order of commitment to be entered, and handed it to the judge, who stated he would reform it, and give it back to him for entry on the minutes.The order in question, according to the testimony of this witness, was entered on the record on Wednesday, March 4th.The writ of habeas corpus in this case was sued out, and the writ granted between 6 and 7 o'clock of said Saturday evening.To said writ the sheriff made the following return: It will be seen from this that no writ of commitment was ever issued in this cause.This is a substantial relation of the salient facts in the case.
Before proceeding to a discussion of the case, we will quote the articles of our statute bearing upon this subject.
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Laird v. State
...1111, where a great number of cases are collated, the opinion having been written by Presiding Judge White. Ex parte Taylor, 34 Tex. Cr. R. 591, 31 S. W. 641; Ex parte Kearby, 35 Tex. Cr. R. 531, 34 S. W. 635;
Ex parte Kearby, 35 Tex. Cr. R. 634, 34 S. W. 962; Ex parte Duncan, 42 Tex. Cr. R. 661, 62 S. W. 758; Ex parte Tinsley, 37 Tex. Cr. R. 517, 40 S. W. 306, 66 Am. St. Rep. 818; Ex parte Lake, 37 Tex. Cr. R. 656, 40 S. W. 727, 66... -
Ex parte Owens
...judgment may be released on habeas corpus.' Ex parte Degener, 30 Tex.App. 566 [17 S.W. 1111]; Ex parte Taylor, 34 Tex. Cr. R. 591 [31 S.W. 641]; Ex parte Tinsley, 37 Tex. Cr. R. 517 [40 S.W. 306, 66 Am. St. Rep. 818];
Ex parte Kearby and Hawkins, 35 Tex. Cr. R. 531; Ex parte Kearby, 35 Tex. Cr. R. 634 [34 962]; Brown on Jur. §§ 109, 110; Ex parte Lake, 37 Tex. Cr. R. 656 [40 S.W. 727, 66 Am. St. Rep 848]. 'Some of the older authorities regard jurisdiction of the matter and... -
Goodfellow v. State
...lacking, the judgment will be fatally defective. Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111. The same doctrine was laid down in Ex parte Kearby, 35 Tex. Cr. R. 531, 34 S. W. 635, and reaffirmed in
Ex parte Kearby, 35 Tex. Cr. R. 634, 34 S. W. 962. Ex parte Duncan, 42 Tex. Cr. R. 661, 62 S. W. 758, follows the doctrine laid down in the cases already cited, and emphasizes the proposition that the jurisdiction of the court must not only be of the person... -
Ex Parte Andrews
...leaving the city of Houston by rail for the city of Rockdale in Milan county, for the purpose of obtaining the writ of habeas corpus, and he insists that he should be relieved and discharged under the rule laid down in
Ex parte Kearby, 35 Tex. Cr. R. 634, 34 S. W. 962. In that case we held that when one is adjudged guilty of a contempt of court, that the fact of contempt should be ascertained and determined by the court, and that this adjudication should be entered in the minutes offollowing: (1) Relator's contention that the judgment is void, because no order had been entered and commitment issued at the time of his supposed illegal restraint, under the agreed facts, is not well taken. The case of Ex parte Kearby, 35 Tex. Cr. R. 634, 34 S. W. 962, cited by him is not in point, but the case of Ex parte Latham, 82 S. W. 1046, 11 Tex. Ct. Rep. 266, recently decided by this court, decides this question adversely to relator's (2) The state submits that questions...